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Could Duffy, Wright, Ford be fired for cause?

Photograph by: Adrian Wyld
, THE CANADIAN PRESS

Of late, there has been a flurry of news stories, both at the federal and municipal levels of government, that got me wondering whether the prime minister's chief of staff, Nigel Wright, Conservative senator Mike Duffy, or Toronto's mayor Rob Ford could have been fired for cause if they were private-sector employees.

Duffy has been accused of falsely submitting $90,000 in expense claims for his home in Prince Edward Island. As he represents the province in the Senate, he claimed the house as his principal residence and received the annual housing allowance provided to senators living more than 100 kilometres from Ottawa. (He compounded this by claiming senate expenses while campaigning for the Tories in the last election.)

While an audit was underway to establish the legitimacy of the $90,127.24 claim, Wright slipped Duffy $90,127.24 with which to reimburse the Senate before the audit was complete. Wright claims it was a personal gift. This is possible, but no one has ever reported them as particularly close friends. And even if they were, it defies credibility that he would give over this money without any loan arrangement. To put the gift in perspective, $90,000 is a little more than twice the average gross salary in Canada.

CTV News reported that the Senate's internal economy committee -in are port tabled in the Senate and made public - sanitized the initial audit of Duffy's expenses to remove several damning findings. More ominously, they state, "the whitewash was part of a backroom deal with Prime Minister Stephen Harper's chief of staff, Nigel Wright."

After taking the $90,000 gift from Wright, Duffy borrowed the same amount from his bank, or so he publicly declared. Why did Wright provide him the money, to pay back what he never should have taken from the Senate (read: tax dollars) in the first place, when a loan was possible? Putting all that aside, the question remains could either man have been fired for cause?

I have long said that if an employer wants to fire an employee for cause, as often as not they merely need to thoroughly review the employee's expenses. deliberately false expense claims are cause for discharge. Many senators appear to agree: Before Duffy's "voluntary" resignation from the Tory Senate caucus, a majority of Tory senators purportedly had circulated a petition seeking his removal and were about to confront him with it.

But that would not be the only cause for discharge. even if Wright's cash was a personal gift, Duffy's acceptance of it runs afoul of the Senators' Conflict of Interest Code, which prohibits gifts that "could reasonably be considered to relate to the senator's position." Given their relative positions, it would be hard to argue that Wright's gift to Duffy does not fall under this provision.

Wright's action, however, succeeded in taking a scandal involving a rogue senator - which at most would question Harper's judgment in making the appointment, as was the case with Senator Patrick Brazeau - and brought it right through Harper's office door.

It also speaks to interfering with a Senate investigation before too much damage can be done. The appearance of attempting to cement the fidelity of a senator for the PM's agenda may easily violate up to three sections of the Conflict of Interest Act. If he subjected Harper to such vulnerability, that by itself would be cause for discharge, let alone the apparent breach of the statute.

As the chief, if Mr. Harper knew of this payment (which he denies), he would properly be discharged for cause. If he did not, Wright's calumny is all the more egregious.

As for Mayor Rob Ford, if a CEO is caught smoking crack cocaine, he can justifiably be fired for cause because the position requires maintaining an appropriate image for the corporation. If the picture was taken years ago (to my eyes, it is a younger and more svelte-looking Ford) before he became mayor, there may still be the obligation, in law, of a fiduciary at that level, to disclose matters that could create embarrassment for the employer. That is, if it is proven he was smoking crack and it is not a Photoshopped picture.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Dismissal in Canada.

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